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Keywords

attorneyhearingtrialmotionbail

attorneytrialmotionbailrespondent

Related Cases

Klemm v. Superior Court, 75 Cal.App.3d 893, 142 Cal.Rptr. 509

Facts

Dale Klemm (husband) and Gail Klemm (wife) were married and had two minor children. After separating, the wife filed for dissolution without an attorney, and an attorney friend, Catherine Bailey, represented her without compensation. They agreed on joint custody and the wife waived child support. However, the court referred the child support issue to the Family Support Division, which recommended that the husband pay child support to the county. At a hearing, Bailey attempted to represent both parties, but the court denied this due to a perceived conflict of interest.

Dale Klemm (hereinafter “husband”) and Gail Klemm (hereinafter “wife”) were married and are the parents of two minor children. They separated after six years of marriage, and the wife filed a petition for dissolution of the marriage in propria persona.

Issue

To what extent may one attorney represent both husband and wife in a noncontested dissolution proceeding where written consent for such representation has been filed with the court?

The ultimate issue herein is to what extent one attorney may represent both husband and wife in a noncontested dissolution proceeding where the written consent of each to such representation has been filed with the court.

Rule

An attorney may represent conflicting interests only with the informed written consent of all parties concerned, and dual representation is permissible if the conflict is merely potential and not present, provided there is full disclosure and informed consent.

Rule 5-102 of the State Bar Rules of Professional Conduct states: 'A member of the State Bar shall not represent conflicting interests, except with the written consent of all parties concerned.'

Analysis

The court analyzed the situation and determined that the conflict of interest between the husband and wife was strictly potential, as they had settled their differences and there was no actual dispute regarding child support. The court noted that the wife's waiver of child support was a personal choice and did not create a conflict that would prevent the attorney from representing both parties, provided that the written consents were informed and given after full disclosure.

In our view the case at bench clearly falls within the latter category. The conflict of interest was strictly potential and not present. The parties had settled their differences by agreement.

Conclusion

The court issued a writ of mandate directing the trial court to reconsider the motion for joint representation and to determine if the consents were knowing and informed after full disclosure.

It is ordered that a peremptory writ of mandate issue directing the trial court to reconsider Bailey's motion to be allowed to represent both husband and wife.

Who won?

The husband and wife prevailed in their petition for a writ of mandate because the court found that the potential conflict of interest did not preclude joint representation under the circumstances.

The court grounded its ruling upon the following reasoning: '(U)nder our canons of ethics and rules of conduct it would be improper for Miss Bailey to appear in this proceeding on behalf of the respondent where there is not in the court's opinion a theoretical conflict, but an actual conflict of interest…'

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